not a mere float, but was of land within defined boundaries, which embraced a greater quantity than that specified in it, with a provision that the surplus should be measured off by the government, I held that until such measurement the grantee could hold the whole as against intruders, and until then he was a tenant in common with the government.  As I said in one of my opinions, speaking for the court, until such measurement no individual could complain, much less could he be permitted to determine in advance, that any particular locality would fall within the supposed surplus, and thereby justify its forcible seizure and detention by himself.  “If one person could in this way appropriate a particular parcel to himself, all persons could do so; and thus the grantee, who is the donee of the government, would be stripped of its bounty for the benefit of those who were not in its contemplation and were never intended to be the recipients of its favors."[2]

These views have since met with general assent in California and have been approved by the Supreme Court of the United States.[3] But at that time they gave great offence to a large class, and the judges were denounced in unmeasured terms as acting in the interests of monopolists and land-grabbers.  Even now, when the wisdom and justice of their action are seen and generally recognized, words of censure for it are occasionally whispered through the Press.  Persons sometimes seem to forget that to keep the plighted faith of the nation, to preserve from reproach its fair fame, where its honor is engaged, is one of the highest duties of all men in public life.

The action of the court as to the possession of the public lands of the United States met with more favor.  The position of the people of California with respect to the public lands was unprecedented.  The discovery of gold brought, as already stated, an immense immigration to the country.  The slopes of the Sierra Nevada were traversed by many of the immigrants in search of the precious metals, and by others the tillable land was occupied for agricultural purposes.  The title was in the United States, and there had been no legislation by which it could be acquired.  Conflicting possessory claims naturally arose, and the question was presented as to the law applicable to them.  As I have mentioned in my Narrative of Reminiscences, the Legislature in 1851 had provided that in suits before magistrates for mining claims, evidence of the customs, usages, and regulations of miners in their vicinage should be admissible, and, when not in conflict with the Constitution and laws of the United States, should govern their decision, and that the principle thus approved was soon applied in actions for mining claims in all courts.  In those cases it was considered that the first possessor or appropriator of the claim had the better right as against all parties except the government, and that he, and persons claiming under him, were entitled